There are few issues about which there is as much political consensus as Female Genital Mutilation (FGM). The vile practice, which involves cultural leaders using scissors, knives or other sharp implements to remove parts of a young girl’s clitoris or labia, has been widely condemned across the political arena.
Earlier this year, Karen Bradley, then the Minister for Preventing Abuse and Exploitation, wrote in Asian Voice magazine that: “FGM is a crime and it is child abuse. This Government is absolutely determined to stamp it out, and we will not allow political or cultural sensitivities to get in the way.”
It has been estimated that there are up to 137,000 women and girls in the UK today who have suffered FGM. In 2015-16, around 100 girls were treated after having the procedure forced on them, and the NSPCC has dealt with more than 1,200 contacts since 2013 relating to the issue.
Rightly recognised as an act of violence upon girls’ bodies, as well as another facet of invidious societal control over women, eliminating the crime has been a recurring priority for governments since it was made illegal in 1985. Since then, successive governments have strengthened or amended the relevant legislation. They have removed ambiguity, added more responsibilities to those in positions of power over those at risk, and increased protection for victims.
But to this day, there has not been a single conviction in Britain for performing FGM. There has been only one attempted prosecution, which failed. The repeated failure of successive governments to bring perpetrators to account is what led the Home Affairs Select Committee, in their report on the issue last week, to call the state of affairs “beyond belief”.
A legislative history
The explicit criminalisation of FGM was first enacted by Margaret Thatcher’s government in 1985, with the Prohibition of Female Circumcision Act. This law, barely two pages long, made it illegal ‘to excise, infibulate or otherwise mutilate’ female genitalia, or to ‘aid, abet, counsel or procure’ the procedure from another person. In 2003, Tony Blair’s government passed the Female Genital Mutilation Act, which introduced further offences of aiding someone in performing FGM on themselves, or of assisting a non-British national in committing FGM overseas.
Both these laws were themselves amended by the Serious Crime Act 2015, passed under the 2010-15 Coalition Government. This wide-ranging bill, covering regulations on the proceeds of crime, the misuse of computers and drug offences, also contained a section about FGM. This changed the law so that, rather than merely having a duty to refrain from assisting in FGM, parents can now be brought to justice for ‘failing to protect a girl at risk of genital mutilation’.
This was sensible, as Theodora A. Christou and Sam Fowles, both legal academics at the Queen Mary University School of Law, explain. In an article detailing the changes, they argue: ‘the moral duty of a parent goes beyond simply ‘refraining from assisting the commission of FGM’. A parent has a duty to actively protect their daughter from the practice. Parents have a moral duty to take all reasonable measures to protect their child from harm.’
Further missed opportunities
However, it is not enough merely to make something illegal - in order effectively to root it out, the state must also be made aware when it happens. Because of the highly private nature of FGM, there will be relatively few witnesses when it happens, making prosecutions difficult. This, in the words of Neil Moore, Principal Legal Advisor to the Director of Public Prosecutions, is because British law says that ‘if a child has been injured in any way in the presence of two parents and there is no evidence pointing to one or the other and there is no evidence of them acting together, each is entitled to be acquitted.’
The Serious Crime Act 2015 also introduced a number of measures designed to address this problem. It placed a duty on NHS Trusts, GPs, social workers and medical staff to report cases of FGM when they are encountered. The reasoning was that accurate and rapid reporting would reduce confusion about the precise circumstances in which the offence took place, making a successful prosecution more likely. This moved the UK closer to the French system of tackling FGM, which involves compulsory physical examinations for all young girls.
The problem is that the reporting duty has not been effective in practice. Statistics published by the Health and Social Care Information Centre in 2015 show that only 8% of the country’s GP services are registered on the FGM Dataset collection system. Of the more than 1,500 surgeries in London, the city in which the majority of FGM cases are believed to be located, only six are registered. Janet Fyle, a policy coordinator for the Royal College of Midwives, told the Home Affairs Select Committee that sections of health and medical professionals ‘believe that they don’t have to do it and have franchised it out to some community groups.’
It is difficult to conceive an effective legislative solution when it appears the weight of British law makes it difficult to prosecute parents in the absence of especially incriminating evidence. There are also well-founded political and philosophical objections to imposing mandatory and potentially invasive physical examinations on young girls. This makes a French-style solution to the problem unlikely here.
The most obvious answer is to ensure that those with a duty to report FGM when they encounter it actually fulfil this duty. The Home Affairs Select Committee described current reporting as ‘insufficient and ineffective’, saying: ‘It is unacceptable that some clinicians appear to refuse to accept it as their responsibility.’ They concluded ‘The duty to report must not be seen as optional.’
It could be that doctors and other professionals are simply unaware of their responsibilities under the law. It should be made clear that failing to report FGM is tantamount to putting young girls in harm’s way. Imposing sanctions on surgeries and authorities that do not register with FGM data collection systems or fulfil their responsibilities is perhaps the best way to make this apparent.
Once action has been taken to enforce the laws now in place, we might finally see offenders going to prison for a crime that has been illegal in this country for more than 30 years.